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Court rules on water stored for drought protection

Merely storing water in a reservoir does not qualify as beneficial use, the Colorado Supreme Court ruled Monday.

For some water experts, that’s a huge decision. Others, however, say it isn’t unexpected because the ruling is consistent with the Colorado Constitution.

What the two sides do agree on, however, is that the ruling settles a long-standing debate in Colorado water law: Water can only be stored until it is put to beneficial use. Anything beyond that is speculative.

The issue came to a head in a dispute between the Upper Yampa Water Conservancy District and the state’s water engineer.

The district was trying to get the engineer and the water courts to alter its use water permit to show that some of the water it keeps in Stagecoach Reservoir for future uses, such as during a possible drought, should be considered a beneficial use. Water providers must prove beneficial uses every six years in order to maintain their water rights.

But in a 7–0 vote, the high court disagreed, saying such a use is speculative and that has never been allowed.

“The district urges that placing water into storage ‘uses’ it by removing the water from the stream system to accomplish a particular purpose — namely, use when needed at a later date,” Justice Allison Eid wrote in the unanimous opinion. “However, defining storage for a later date as ‘use’ seems more akin to speculative hoarding and, as such, is in direct tension with Colorado’s long-standing anti-speculation policy.”

Glenwood Springs attorney David Hallford, who represents the district, said that means reservoirs around the state will have to be emptied from time to time to show all of their water is actually being used.

He called the ruling “frustrating,” saying that while it may be based on long-standing water law, the justices aren’t considering the new reality, that devastating droughts such as the one Colorado dealt with in 2002 will return.

“You have a reservoir that you are storing water in for use during drought conditions; it’s kind of an insurance policy,” Hallford said. “That ought to be considered a final water right, an absolute water right. You shouldn’t have to come back every six years and show you’ve been diligent. You build the damn thing, you’ve contracted the water and people are waiting for the mother of all droughts.”

Hallford said that means when the Stagecoach is drained every six years, the Yampa water district will have to hope a drought doesn’t hit the next year.

John Cyran, a lawyer in the Colorado Attorney General’s Office who represented the water engineer, said that’s not the case.

Cyran said the ruling doesn’t mean Yampa and other water districts can’t store water to guard against a future drought; they can’t use that as an excuse to hoard it forever.

“It really said nothing about whether or not you could store water for drought purposes or other beneficial purposes,” he said. “It just reaffirms something that’s a really old piece of Colorado law. One of the cases the Supreme Court cites is from 1912. It says, once you store water ... you have to put the water to use at some point.”

Chris Treese, executive director of the Colorado River Water Conservation District, said the two sides point to the long-standing dispute.

“Those who lost this case or feel that Yampa lost the case were under the impression that storage is a sufficient beneficial use unto itself,” Treese said. “There are others who never thought that.”

Treese said the issue depends on how the water is to be used. In Yampa’s case, it’s for consumptive uses, such as municipal, agricultural or industrial. Other reservoirs have uses decreed by the courts that allow them to keep water in their reservoirs for things such as recreation, hydropower or wildlife.

“The justices were careful to say that they’re not discouraging storage of water,” he said. “They don’t want to penalize anybody, and they don’t feel they are. They’re simply applying the law that says that stored water in and of itself is not a beneficial use.”

Nate Keever, a Grand Junction attorney who specializes in water law, said the ruling likely will spark other lawsuits.

He said that while it settles the question on stored water, it leaves open a debate on what is speculative.

“It doesn’t answer all of the questions that are probably going to be flushed out,” Keever said. “One thing it does do is it makes clear that every conditional water right that’s out there is subject to attack. Will somebody who’s filing on a reservoir for a conditional use today put in the term ‘drought protection’? Oh, you bet.”